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S:\KOMIVES\Eddrey Butts\Stone.Brian.Crim.Suppress(278285337) 2:10-cr-20123-VAR-PJK Doc # 391 Filed 08/03/11 Pg 1 of 28 Pg ID 2586 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, CASE NO. 2:10-CR-20123 v. JUDGE VICTORIA A. ROBERTS MAGISTRATE JUDGE PAUL J. KOMIVES DAVID BRIAN STONE, et al., Defendants. / REPORT AND RECOMMENDATION ON: (1) DEFENDANT DAVID STONE JR.’S FRANKS MOTION TO SUPPRESS (docket #278) AND RELATED JOINDERS (docket #279-84, 287, 339, 341); (2) DEFENDANT PIATEK’S MOTION TO QUASH SEARCH WARRANT (docket #285) AND RELATED JOINDERS (docket #288, 291, 296, 340); and (3) DEFENDANT JOSHUA STONE’S MOTION TO SUPPRESS (docket #337) AND RELATED JOINDERS (docket #338, 343, 346, 357) I. RECOMMENDATION ................................................................ 1 II. REPORT ........................................................................... 2 A. Background .................................................................. 2 1. The Case in General and the Instant Motions ................................. 2 2. The Search Warrant Affidavit ............................................. 5 C. Probable Cause .............................................................. 13 1. Legal Standard ....................................................... 13 2. Analysis ............................................................. 15 C. The Franks Issue ............................................................. 19 1. Legal Standard ....................................................... 19 2. Analysis ............................................................. 21 D. Conclusion .................................................................. 27 III. NOTICE TO PARTIES REGARDING OBJECTIONS ...................................... 27 * * * * * I. RECOMMENDATION: The Court should deny defendant David Stone, Jr.’s Franks Motion to Suppress Evidence, defendant Piatek’s Motion to Quash Search Warrant, and defendant Joshua Stone’s Motion to Suppress Search of 6021 Tomer Road. The Court should also deny the related 2:10-cr-20123-VAR-PJK Doc # 391 Filed 08/03/11 Pg 2 of 28 Pg ID 2587 joinders/concurrences of the remaining defendants.1 II. REPORT: A. Background 1. The Case in General and the Instant Motions On March 29, 2010, the Grand Jury returned a multi-count indictment against nine defendants: David Brian Stone, David Brian Stone, Jr., Joshua Matthew Stone, Tina Mae Stone, Joshua John Clough, Michael David Meeks, Thomas William Piatek, Kristopher T. Sickles, and Jacob J. Ward. The Grand Jury returned a First Superseding Indictment on June 2, 2010, and a Second Superceding Indictment on February 10, 2011. In general, the Second Superceding Indictment alleges that defendants are members of the “HUTAREE,” characterized as an anti- government organization. Count One of the Indictment charges all nine defendants with seditious conspiracy in violation of 18 U.S.C. § 2384. Count Two charges all nine defendants with conspiracy to use a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a)(2). Count Three charges defendants David Brian Stone and David Brian Stone, Jr., with teaching or demonstrating the use of explosive materials in violation of 18 U.S.C. § 842(p)(2). Counts Four and Five charge all nine defendants with carrying, using, or possessing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). Counts Six and Seven charge two additional § 924(c) counts against all defendants except for defendants Tina Mae Stone and Piatek. Counts Eight and Nine charge defendant David Brian Stone with possession of a machine gun in violation of 18 U.S.C. §§ 922(o), 924(a)(2). Count Ten charges the same against defendant Joshua Stone, and Counts Twelve 1Although the Court referred these matters to me for hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A), that section prohibits a magistrate judge from hearing and determining a motion “to suppress evidence in a criminal case.” Id. Thus, I respectfully submit this Report and Recommendation pursuant to § 636(b)(1)(B) in lieu of a determination of the matters. 2 2:10-cr-20123-VAR-PJK Doc # 391 Filed 08/03/11 Pg 3 of 28 Pg ID 2588 and Thirteen charges the same against defendant Clough. Finally, Counts Thirteen through Fifteen charge defendants David Brian Stone, David Brian Stone, Jr., and Joshua Stone, respectively, with possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), 5871. The Second Superceding Indictment also alleges a claim for criminal forfeiture pursuant to 18 U.S.C. §§ 981(a)(1)(G), 924(d); 26 U.S.C. § 5782; and 49 U.S.C. § 80303. The crux of the case is the seditious conspiracy charge alleged in Count One. In this count, the government charges that defendants “knowingly conspired, confederated, and agreed with each other and with other persons known and unknown to the Grand Jury, to oppose by force the authority of the Government of the United States, and to prevent, hinder, and delay by force the execution of United States law, including federal laws regarding the sale, purchase, receipt, possession, and use of firearms and destructive devices.” 2d Superceding Indictment, Count One, ¶ 2 [hereinafter “Indictment”]. The Indictment then alleges the means and methods used by defendants to further the objects of the conspiracy. Specifically, the Indictment alleges that “[t]he HUTAREE’s general plan was to commit some violent act to draw the attention of law enforcement or government officials, in order to prompt a response by law enforcement,” such as by killing a law enforcement officer. Id., ¶ 3. The Indictment further alleges that once such a law enforcement response had been provoked, “HUTAREE members would retreat to one of several ‘rally points’ where the HUTAREE would conduct operations against the government and be prepared to defend in depth with trip-wired and command detonated anti-personnel IEDs [(improvised explosive devices)], ambushes, and prepared fighting positions.” Id., ¶ 4. Such a confrontation, the Hutaree believed, “would be a catalyst for a more widespread uprising against the United States Government.” Id. The Indictment alleges that the “conspirators planned and trained for armed 3 2:10-cr-20123-VAR-PJK Doc # 391 Filed 08/03/11 Pg 4 of 28 Pg ID 2589 conflict against local, state, and federal law enforcement” through numerous means, including acquiring weapons, engaging in military-style training, planning the execution of a law enforcement officer, obtaining information about and materials for the construction of IEDs, engaging in reconnaissance exercises and planning for the killing of anyone who happened upon their exercises, and attempting to initiate a Hutaree protocol to engage law enforcement in an armed conflict following the arrest of several Hutaree members. Id., ¶ 5. The weapons of mass destruction, explosive device, and § 924(c)(1) charges alleged in Counts Two through Seven are derivative of the seditious conspiracy count alleged in Count One. The remaining firearms charges alleged in Counts Eight through Fifteen arise from the Government’s seizure of various weapons during the execution of multiple search warrants in this case. The matter is currently before the Court on three motions to suppress filed by defendants. On February 1, 2011, defendant David Stone, Jr., filed a motion to suppress or for a hearing pursuant to Franks v. Delaware. In this motion, defendant alleges that the affidavit in support of two search warrants contained deliberately or recklessly false material statements or omissions. Defendant also argues that the warrant fails to establish probable cause on its face. This motion has been joined by all defendants.2 The Government filed a response to the motion June 23, 2011, and defendant David Stone, Jr., filed a reply on July 7, 2011. In the second motion, filed on February 4, 2011, defendant Piatek seeks to quash the warrant on the ground that the affidavit in support of the warrant failed to demonstrate probable cause to believe that evidence of a crime would be found at his residence. This motion is joined by defendants Clough, Tina Stone, David Stone, Jr., and Joshua Stone. The 2Defendant Piatek’s joinder offers additional argument in support of the motion. The remaining defendants’ joinders simply concur in the relief sought. 4 2:10-cr-20123-VAR-PJK Doc # 391 Filed 08/03/11 Pg 5 of 28 Pg ID 2590 government filed a response to this motion on June 23, 2011, and defendant Piatek filed a reply on June 29, 2011. In the final motion, filed on May 26, 2011, defendant Joshua Stone seeks to suppress the search of his residence, on the ground that the affidavit submitted to obtain the warrant failed to demonstrate probable cause to believe that he had committed any of the offenses set forth in the affidavit and thus that evidence of the crimes could have been found in his residence. The government filed a response to this motion on June 23, 2011. For the reasons that follow, the Court should deny each of the motions.3 2. The Search Warrant Affidavit Between March 23 and April 11, 2010, eleven search warrants were issued by Magistrate Judges Morgan and Scheer. Eight of the warrant applications were accompanied by the identical affidavit of Detective Sergeant Sandra L. Larsen, of the Michigan State Police. See Def. David Stone, Jr.’s, Mot. to Suppress, Ex. 1 [hereinafter “Aff.”]. The affidavit details the government’s investigation of the Hutaree group, mostly through the observations of a confidential source (identified in the affidavit as “CHS-1”) who joined the group in August 2008, and of an undercover agent of the Federal Bureau of Investigation (FBI) (identified in the affidavit as “UCE-1”) who 3With respect to the various joinders in these three motions by other defendants, there is a question as to whether some of them are proper. “[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v.
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